In the June 2017 issue of Children and the Law News, an article written by Attorney Benjamin Anderson was published by the State Bar of Wisconsin. You can read the article below:

Commonly, matters pertaining to children of a marriage is the most emotional part of divorce proceedings. There are three major parts of any divorce proceeding:

property division;

maintenance; and

matters pertaining to children.

Matters pertaining to children during a divorce include the custody of the child or children and the placement of the child or children. Custody generally pertains to the decisions parents make when raising children. This includes medical decisions, religious decisions, education decisions, extracurricular activities, etc. Placement, on the other hand, is where the child lives on a day-to-day basis. Custody is not the same as placement, and it is common for individuals not familiar with the law to confuse the meaning of custody with the meaning of placement. There is a significant difference between the two terms, both legally and in practice.

She is the Mother

The tale of the biblical King Solomon and a custody dispute is well-known in the history of child custody and placement:

King Solomon is asked to decide who will be awarded custody of an infant. Rather than turning to a statute book to determine which was to be preferred, his first request was, “Get me a sword.” He then announced that he would “cut the living child in two, and give half to one woman and half to another.” When the biological mother protested and was willing to give up her child on the condition that the baby's life be spared, the king gave his custodial judgement, “Give the first one the living child! By no means kill it, for she is the mother.”

This tale demonstrates the very first trend in child custody and placement disputes. However, this trend quickly changed as the world became a more father-dominant, patriarchal society.

Three Stages

The basis for today's custody and placement disputes is traced back to English Common Law. This is because much of the U.S. legal system is based on Common Law.

During the early stages of the court system, men were the heads of the household. They held all of the property in the marriage. That property also included children. The father supported the children, and as such, they were considered his property. If the marriage between mother and father ended, the father retained the children under martial property laws.

This marks the first trend in child custody and placement disputes. The first stage is represented by a legislative and judicial preference for the father in custody cases.

The second stage is represented by a swing in favor of the mother. This stage led to the development of what was subsequently called the ‘tender years’ doctrine or the ‘mothers love’ preference.

The final stage, which also has various developmental substages, is focused on the abolition of preferences and the creation of a set of ‘factors’ by which a court analyzes the ‘best interests of the child.’

The Tender Years Doctrine

The Tender Years doctrine began to take hold in the 1800s and at the advent of Women's Marital Property Rights. This doctrine was never codified, but great evidence of the maternal preference is found in case law:

“Strong natural affection of a devoted mother living an industrious and reputable life, though she be in straitened circumstances, is a very sufficient assurance that she will tenderly care for and properly nurture and educate her children.”[1]

The Best Interest Standard

Just as the Tender Years Doctrine took hold in case law, what we know today as the “Best Interest” standard began in case law as well.

It wasn't until 1971 that the best interest standard was codified in Wisconsin. In 1999, more changes were added to the best interest standards. The changes made were an increase in factors courts must consider in rendering a custody and placement order. Today those standards and all others are codified under Wis. Stat. section 767.41. One important aspect of the statute is that “the court shall presume that joint legal custody is in the best interest of the child.”

The factors in determining placement and custody are found under Wis. Stat. section 767.41(5). The statute is a long list containing 16 factors that the judge must consider before entering a custody or placement order. In order to make sure the best interest of the child is being represented, the court must appoint a Guardian ad Litem under Wis. Stat. section 767.407.

From my experience in practice, the effects of the tender years doctrine still lingers on, and courts are still more willing to provide placement to mothers over fathers. But the tide is changing, and more judges are issuing orders with a veil over the role of mother or father.

Collaboration and Mediation

Adding factors to consider in deciding custody battles wasn't the only thing that changed in 1999. There has been a shift to a more collaborative process when deciding children's custody and placement with the advent of parenting plans.[2]

Wisconsin's parenting plan law requires that each parent submit to the court a detailed plan of parenting duties and responsibilities. This is one step to a more collaborative process.

Another is the mediation mandate.

“In any action affecting the family, including an action for revision of judgment or [when] it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator.”[3]

The move to mediation is taking on an even greater importance starting this year. The Wisconsin Supreme Court has approved a petition that will allow lawyer-mediators to draft and file settlement documents in family law cases.[4]

The Changing Role of Guardian ad Litem

The move toward mediation may dramatically shift a guardian ad litem’s role in representing the best interest of a child. If custody and placement are not in dispute and agreed upon in mediation, no guardian ad litem will be appointed.

What does this mean for the representation of the child's best interest? Naturally the court still has the ability to appoint a guardian ad litem, but if custody and placement are agreed upon, there is no mandatory appointment. This can even happen during litigation; but there is almost always a guardian ad litem appointed when children are involved, because there is generally a dispute.

Only time will tell if the statutes regarding the appointment of a guardian ad litem will change in order to accommodate the new push toward mediation.

Very few areas of law are as emotionally charged or as volatile as matters pertaining to children. Whether it is an action in which children may need protective services or whether it is a divorce proceeding, emotions are always heightened when dealing with children. That is why guardians ad litem have such an important job.

But is this role in the court system being diminished by the push toward mediation? It is important that the best interest of the child continue to be looked after.

[1] Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, Marquette Law Review, 2002.